Crosby v. Otis , 32 Me. 256 ( 1850 )

Howard, J.

The defendant, as treasurer of the proprietors of “township No. 8,” sold certain portions of their lands, and accounted for the proceeds, from time to time, to the proprietors individually, “ agreeably to an arrangement between them.” The wife of the intestate was one of the proprietors, and owned fourteen thirty-second parts of the township. Her husband “ had always acted for the interest owned by his wife, had corresponded with the said Otis, and settled, after a protracted investigation, the accounts exhibited, being for receipts and payments on account of said fourteen thirty-second parts of said lands.” The' statement of the accounts, signed by the defendant, and exhibited as a part of the case, purports to be an account current between him and Joseph Cutler, the intestate, commencing in August, 1835, and closing at the date of the settlement, October 17, 1845. This account shows a balance of $1927,09 due to the deceased ; “ and the defendant had been called upon to pay such balance, and had made direct promises to said Cutler, in his lifetime, by letter and verbally so to do.” The intestate died in May, 1848, and this suit was brought by his administrator, to recover the balance named, and interest.

The wife of the intestate is still living, and it is understood that she does not object to the maintenance of the action; at least, no objections have been presented by her in the progress of the cause; and it seems to be admitted that the defendant was properly authorized, and empowered to make sale of the lands, in the manner in which it was done. The fee of the lands was in Mrs. Cutler, and in her real estate the husband had only a qualified interest, during coverture. At his decease she would be admitted to the entire control of the property in her own right, unaffected by any claims of his representative, heirs, or creditors. When, however, the real estate of the wife was legally alienated, the proceeds in money became personal property, and belonged to the husband. It was his money in the hands of-the defendant, although an equivalent for her lands. The defendant became his debtor by operation of law, and accountable to him only, subject to the rules of law, applicable to debtor and creditor. At the death of the husband, the debt was a part of his estate to be administered by his representative. 2 Black. Com. 435; 2 Kent’s Com. 135; Barlow v. Bishop, 1 East, 432; Doswell v. Earle, 12 Ves. 473; Savage v. King, 17 Maine, 301; Chase v. Palmer, 25 Maine, 341; Commonwealth v. Manley, 12 Pick. 173; Emerson v. Cutler, 14 Pick. 119.

It is proved that the defendant received the proceeds of the sale of the lands of the wife during coverture, under the direction of the husband ; that he kept the account with the husband solely ; and that he has paid him a large portion of the proceeds, and has frequently promised to pay him the balance, on demand made. The husband claimed the proceeds, not, as the evidence indicates, for his wife, but for himself; and it does not appear that either the husband or wife ever intended that this fund should be treated as her estate. The defendant) then, cannot stand upon the supposed right of the wife to the money in his hands, when, upon the facts of this case, she could not, if she chose to do so, maintain a claim for it in her own right, in law, or in equity.

The action is maintainable ; and, according to the agreement, the defendant is to be defaulted, and judgment must be rendered for the plaintiff, for the balance of $1927,09, with interest from October 17, 1845, when it was admitted to be due on settlement.